Lincoln's Suspension of Habeas Corpus

By Aaron Shapiro|December 24, 2009 at 12:00 AM

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The Association of Supreme Court Justices, in conjunction with the New York Law Journal and the New York City Department of Education, sponsored its ninth annual essay contest, which was open to New York City public high school students in the 10th, 11th and 12th grades. This year, students submitted an essay on the “Legacy of Lincoln” and the suspension of habeas corpus during the Civil War. The winners were announced at a ceremony on Dec. 2 at the New York City Bar. On hand for the event, from left, are Department of Education Counsel Michael Best; Brooklyn Supreme Court Justice Michelle Weston, president of the New York State Association of Justices of the Supreme Court; Brooklyn Supreme Court Justice Abraham G. Gerges, who founded the contest; grand prize winner Aaron Shapiro; Chief Judge Jonathan Lippman; and Law Journal publisher George M. Dillehay.

It was once said, “In times of war law is silent.” (A Latin Phrase: inter arma silent leges). It was early January 1861, when the political state of the Union became extremely grave. Six states from the deep South, lead by South Carolina, had seceded from the Union. It was not until after the Confederates bombarded Fort Sumter on April 12, 1861, President Abraham Lincoln called for 75,000 volunteers to save the Union. The states of Virginia, Arkansas, North Carolina and Tennessee followed suit to secede. The situation of the federal Capital was quite precarious. On its south, Alexandria, the northern part of Virginia, was packed with rebels. Surrounding the capital, north, east and west was Maryland, a slave state full of Confederates.

The majority of the Maryland legislature fortunately refused to consider a secession ordinance, and thus, saved the Capital. In order to take a preventive strike against any probable plots by the Confederates, Lincoln ordered the suspension of the writ of habeas corpus, covering the departments in Pennsylvania, Delaware, Maryland and Washington.

Chief Justice Roger Taney protested strongly, only Congress had the authority to suspend habeas corpus. In examining the language of the Constitution, the reference to habeas corpus was written in Article I, Section nine, Paragraph two, in the Congressional domain. However, during this emergency period, Congress was not in session. In the absence of Congress taking any action, the president had the absolute right to exercise his executive power in order to meet this emergency. Lincoln had sworn under oath, “to defend the Constitution.” The south east and west part of Washington, D.C. is Virginia, which had seceded. If Maryland, the northern part seceded, Washington, D.C. would be surrounded by rebels, putting the U.S. government in great danger. Their supply line would be cut by the Confederates. Lincoln had to act boldly to save the Union. He assumed that power and ignored Taney’s protest. He believed it was imperative to preserve the Union.

Lincoln had sworn to “defend the Constitution.” He felt suspending habeas corpus was a key instrument in preserving the Union. If there had been only one choice between saving the Union and upholding the law, it is my unequivocal belief Lincoln would not hesitate to take the former.

Thus, the president was correct in suspending habeas corpus because of the threat posed by the possibility of the Confederate takeover of the capital. The U.S. Constitution, Article I, states, that habeas corpus can be suspended in the case of rebellion or invasion. Given the Confederate rebellion and potential invasion, Lincoln had clear legal reason to suspend habeas corpus.

Whenever the case law related to habeas corpus is discussed, the landmark case Ex parte: Merryman will be cited. The clash between Taney and the various generals who represented Lincoln is a good example of the conflict between idealism and pragmatism that characterizes much of the debate on this topic. It formed the basis for Lincoln’s July 4 speech to Congress in which he rhetorically asked “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Lincoln then expanded the zone within which the writ was suspended. After reconvening on July 4th Congress rejected a bill favored by Lincoln to sanction his suspensions. Lincoln nevertheless continued making unauthorized suspensions for another two years until the Habeas Corpus Act of 1863 formally suspended the writ for him.

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